Carl Edward Lord v. Debra K. Lord ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Senior Judge Hodges
CARL EDWARD LORD
MEMORANDUM OPINION *
v. Record No. 0049-02-4 PER CURIAM
JUNE 25, 2002
DEBRA K. LORD
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge
(Peter D. Greenspun; Christie A. Leary;
Greenspun & Mann, P.C., on brief), for
appellant.
No brief for appellee.
Carl E. Lord (husband) appeals the decision of the circuit
court awarding Debra K. Lord (wife) a protective order against
him. On appeal, husband contends the trial court erred in (1)
finding the evidence sufficient to support the issuance of the
protective order, (2) admitting evidence of husband's prior bad
acts, and (3) admitting wife's affidavit in lieu of her
presentation of direct evidence. Upon reviewing the record and
opening brief, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial court.
See Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
On appeal, we view the evidence and all reasonable
inferences in the light most favorable to wife as the party
prevailing below. See McGuire v. McGuire, 10 Va. App. 248, 250,
391 S.E.2d 344, 346 (1990).
Background
Husband and wife divorced in June 2000. Pursuant to a
visitation schedule, husband visits with the parties' young
daughter, Marissa, on Sundays. On the evening of June 7, 2001,
husband arrived at wife's apartment to return Marissa. Appellant
began arguing with wife about the visitation schedule. Husband
waved his finger in wife's face and refused to give wife the
sleeping child. Wife testified appellant walked away from her
apartment carrying Marissa. Wife followed. Husband turned and
shoved, elbowed, and grabbed wife. She stated she is afraid of
husband.
Michelle Thieling testified she lived in the same apartment
complex as wife and that she was in the parking lot on June 7,
2001. Thieling saw husband looked angry as he held wife by her
right elbow and that wife looked scared. Ronald Winters testified
he heard wife calling for help. When he opened his door, he saw
wife trying to call the police. Winters stated that wife appeared
frightened and upset. Winters contacted the police. The
following day, wife obtained a temporary protective order against
husband.
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The evidence also indicated appellant was charged with
assaulting wife in 1997. The charge was dismissed conditioned
upon husband's attending counseling.
Analysis
I.
"The judge's authority to issue the protective order
derived from Code §§ 16.1-278.14 and 16.1-279.1." Goodwin v.
Commonwealth, 23 Va. App. 475, 480, 477 S.E.2d 781, 783 (1996).
In pertinent part, Code § 16.1-279.1 states that "[i]n
cases of family abuse, the court may issue an order of
protection to protect the health and safety of the petitioner
and to effect the rehabilitation of the abusing person and
reconciliation of the parties as the court deems appropriate."
"'Family abuse' means any act involving violence, force, or
threat including any forceful detention, which results in
physical injury or places one in reasonable apprehension of
serious bodily injury and which is committed by a person against
such person's family or household member." Code § 16.1-228. A
"family or household member" includes "the person's former
spouse, whether or not he or she resides in the same home with
the person." Id.
The trial court believed the testimony of wife and her
witnesses. "Determining the credibility of witnesses who give
conflicting accounts is within the exclusive province of the
jury, which has the unique opportunity to observe the demeanor
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of the witnesses as they testify." Lea v. Commonwealth, 16 Va.
App. 300, 304, 429 S.E.2d 477, 479 (1993). Husband grabbed,
pushed, and elbowed wife during a verbal argument. He refused
to surrender Marissa and placed wife in fear for her safety.
The evidence was sufficient to prove that husband committed an
act of abuse against a family member, and Code §§ 16.1-278.14
and 16.1-279.1 authorized the judge to issue an order to protect
wife.
II.
Husband argues the trial court erred by admitting evidence
of the 1997 assault charge. However, when wife's counsel
questioned husband regarding the prior incident, husband merely
objected without explanation or argument.
Rule 5A:18 requires that objections to a trial court's
action or ruling be made with specificity in order to preserve
an issue for appeal. Campbell v. Commonwealth, 12 Va. App. 476,
480, 405 S.E.2d 1, 2 (1991) (en banc). A trial court must be
alerted to the precise "issue" to which a party objects. Neal
v. Commonwealth, 15 Va. App. 416, 422-23, 425 S.E.2d 521, 525
(1992). "'It is the duty of a party . . . when he objects to
evidence to state the grounds of his objections, so that the
trial judge may understand the precise question . . . he is
called upon to decide.'" Simmons v. Commonwealth, 6 Va. App.
445, 450, 371 S.E.2d 7, 10 (1988) (citation omitted). Husband
did not present the grounds of his objection to the trial court.
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Accordingly, Rule 5A:18 bars our consideration of this question
on appeal. Moreover, the record does not reflect any reason to
invoke the good cause or ends of justice exceptions to Rule
5A:18.
III.
Husband also argues the trial court erred by admitting
wife's affidavit in lieu of presenting direct evidence and by
requiring him to proceed with his direct evidence.
Husband's counsel asked the court, "Do you want us just to
respond to the affidavit?" The trial judge replied, "I want you
to respond to the affidavit," to which counsel responded,
"That's fine." Husband did not object to the procedure at the
time. Husband, "having agreed upon the action taken by the
trial court, should not be allowed to assume an inconsistent
position." Clark v. Commonwealth, 220 Va. 201, 214, 257 S.E.2d
784, 792 (1979). "No litigant . . . will be permitted to
approbate and reprobate - to invite error . . . and then to take
advantage of the situation created by his own wrong." Fisher v.
Commonwealth, 236 Va. 403, 417, 374 S.E.2d 46, 54 (1988). Thus,
we do not consider this question presented.
Accordingly, we summarily affirm the decision of the trial
court. See Rule 5A:27.
Affirmed.
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